Delhi District Court
Usha Singh vs Sanjay Verma on 18 November, 2023
IN THE COURT OF SH. RAHUL BHATIA
ADDITIONAL DISTRICT JUDGE-01
SOUTH-EAST DISTRICT, SAKET COURTS: NEW
DELHI
CS DJ No:- 10781/16 (Old case of year 2011)
Usha Singh Vs. Sanjay Verma
Usha Singh
w/o late SQ. LDR. Gajraj Singh
r/o G-131, Sarita Vihar ....... Plaintiff
Versus
1. Sanjay Verma
S/o Sh. Shyam Lal Verma
R/o A-187, Vatika, Sarita Vihar,
New Delhi
2. Shyam Lal Verma
R/o A-187, Vatika, Sarita Vihar,
New Delhi
3. Parvej Bidhuri
S/o late P.C. Bidhuri,
R/o C-2, Madanpur Khadar,
New Delhi
4. Dinesh Bidhuri
S/o late P.C. Bidhuri,
R/o C-2, Madanpur Khadar,
New Delhi
5. Vikram @ Vicky Bidhuri
S/o Late P.C. Bidhuri,
R/o C-2, Madanpur Khadar,
New Delhi ....... Defendants
Date of institution of case : 25.05.2011
Date of reserving of case : 06.11.2023
Date of Order : 18.11.2023
JUDGMENT
1. The present suit has been filed by the Plaintiff for the Specific Performance of agreement to sell between the Plaintiff as the buyer and Defendant no. 1 & 2 and father of the Defendant 3 to 5 for the sale of half portion of Plot No. G-89 (Khasra No.
442), Kalindi Kunj, Shaheen Bagh, 13A Road, New Delhi (hereinafter referred to as Suit Property).
Plaintiff's Case:
2. The Plaintiff has submitted in his plaint that Defendant number 1 and 2 were running a property dealer business under the name and style of Master Associates. The plaintiff had entered into an agreement for sale of the suit property with Defendant number 1 and 2 along with the one Late Sh. P. C. Bidhuri, father of Defendant number 3 to 5, for an amount of Rs. 26,16,500/-, vide agreement to sale cum receipt dated 6.10.2000 for Rs.
10,00,000/- and 27.12.2000 for Rs. 10,00,000/-.
3. That the defendant number 1 and 2 approached the Plaintiff in around September 2000 with a proposal to sell the suit property and introduced the Plaintiff to late Sh. P. C. Bidhuri, who they claimed was the joint owner of the suit property along with Defendant number 1 and 2. It is claimed by the Plaintiff that the Defendant number 1 and 2 along with late Sh. P. C. Bidhuri showed her the Suit Property, which was lying vacant and assured her that the antecedents of the Suit Property were completely clean. In pursuant to this conversation, on 6.10.2000, a meeting was held between the Plaintiff, the defendants number 1 and 2 and father of the remaining defendants, at the house of late Sh. P. C. Bidhuri where it was agreed that the Plaintiff would purchase one half of the total plot of 500 sq. yards against a total consideration of Rs. 26,16,500/-, out of which the Plaintiff paid the first installment of ₹ 10,00,000/- (Rupees10 lakhs), to Defendant No. 1 on the same date and the receipt qua the same was issued by late Sh. P. C. Bidhuri on the letterhead of Master Associates in the presence of defendant number 1, 2 and 3, that is the eldest son of late Sh. P. C. Bidhuri. It was further agreed that the balance payment would be made to the defendants within 90 days.
4. That the Plaintiff called upon the defendant number 1 and 2 and late Sh. P. C. Bidhuri that she is willing to make the balance payment and the sale deed for transfer of title of the suit property be prepared accordingly. That on 27.12.2000, the plaintiff went to the office of Master Associates with remaining consideration and asked the defendants No. 1 an 2 and late Sh. P. C. Bidhuri to execute the sale deed for the Suit Property. However, they stated that the colony was getting regularized and they will get the Sale deed executed as soon as the colony was regularized. As a result, the plaintiff paid a further amount of Rs. 10 Lacs in the hands of defendant number 1 and a receipt dated 27.12.2000 was issued by late Sh. P. C. Bidhuri which was counter signed by the Defendant number 1 as a witness. Simultaneously, the possession of the suit property was handed over to the Plaintiff. Thereafter, the plaintiff approached the defendants Number 1,2 and father of defendants no. 3 to 5, multiple times from 2001 till 2008 and requested them to execute the sale deed. However, on the pretext of the colony getting regularized, they kept on delaying the execution of the sale deed. After the death of late Sh. P. C. Bidhuri, the Plaintiff approached defendants number 3 to 5 and requested them to honour the commitment made by their father vide the agreement illustrated in the receipts dated 6.10.2000 and 27.12.2000, who assured her that they would execute the documents at the earliest and in the meanwhile, she can enjoy the possession of the Suit Property.
5. That on 31.03.2011, the plaintiff got an anonymous call that construction was going on, on the Suit Property and visited the site of the Suit Property and saw that the defendants were standing on the suit property along with some laborers and construction work was going on. The Defendants stated that the plaintiff was no longer the owner of the Suit Property and she should forget about the same. She was threatened by the defendants on the site and being frightened she filed police complaint against the Defendants.
6. It is further stated in the plaint that when she was coming out of the police station Defendants number 1 to 3 were standing outside and approached her to come to the office of Master Associates, so that the matter can be discussed and settled. When the plaintiff reached the office of Master Associates, she was told that she should take back her money paid as advance or pay the Defendants an amount for Rs. 20 lakhs, which the Defendants had spent on the construction.
7. After 2 days the defendants came to the house of the plaintiff and enquired about her decision. The plaintiff told the defendants that she is not willing to accept their existing proposal and insisted that the Defendants should execute a sale deed in her favour. Defendant number 1 and 3 started threatening the Plaintiff, however, Defendant No. 2 requested the Plaintiff to give them a week's time to consider her proposal.
8. That when no reply was received from the Defendants, the Plaintiff visited the suit property on 8.04.2001 and saw that all the Defendants were there and the construction activity was still going on. The defendants informed the plaintiff that they have refused to accept her proposal and threatened the Plaintiff.
9. The Plaintiff has stated that the cause of action first arose on 31.03.2011, when the plaintiff learned about the fact that the defendants have illegally trespassed and entered into unauthorized possession of the suit property and when they refused to honor the agreement between the parties dated 6.10.2020 and 27.12.2000, on the same day.
10. The plaintiff has made the following prayers in the suit:
10.1. Pass a decree of specific performance in favour of the Plaintiff and against the Defendants to specifically perform the agreement for sale dated 6.10.2020 and 27.12.2004 for the Suit Property bearing Plot Number G - 89 (Khasra No. 442), Kalindi Kunj, Shaeen Bagh, 13A Road, New Delhi.
10.2. Pass a decree in favour of the Plaintiff and against the Defendants for restitution of possession of the Suit Property bearing Plot Number G- 89 (Khasra No. 442), Kalindi Kunj, Shaeen Bagh, 13A Road, New Delhi.
10.3. Restrain the defendants, their
servants, employees, agents and
representatives from raising any
construction in the suit premises and
breakdown the construction already raised by them.
10.4. Restrain the Defendants, their
servants, employees, agents and
representatives from interfering with the possession of the Plaintiff in the Suit Property.
10.5.Restrain the defendants, their servants, employees, agents and representatives from creating any third party interest in the suit premises.
10.6. Award cost in favour of the Plaintiff.
10.7. Pass any other order that it may deem fit in the facts of the case and in the interest of justice.
11. Summons for the suit were issued to the defendants and two Written Statements got to be filed, one on behalf of Defendant number 1 and 2 and the other, on behalf of Defendant number 3 to 5.Stand of Defendant No. 1 & 2
12. Defendant number 1 & 2 have filed a joint Written Statement and have taken the following Preliminary Objections:
12.1. That there is no cause of action against Defendant number 1 & 2 as there is no privity of contract between the plaintiff and the answering defendants.
12.2. That the suit is bad for misjoinder of parties and that Defendant number 1 and 2 have been wrongly impleaded as Defendants in the present suit. It is stated that Defendant number 1 was only a witness to a receipt executed by the predecessor in interest of Defendant number 3 to 5.
12.3. Suit of the plaintiff is hit by the provisions of Order VII Rule 3 of the Code of Civil Procedure as neither a site map of the property has been annexed with the plaint nor it has been defined by boundaries or number in a record of settlement.
12.4. That the Court has no jurisdiction to entertain and try this suit as the present suit is barred by Delhi Land Reforms Act 1954.
12.5. The suit is not properly valued and proper court fees has not been paid as the present market value of the suit property is more than rupees one crore.
12.6.That the suit is barred by limitation as specific performance is sought for an agreement to sell of the year 2000 and the suit has been filed in the year 2011.
13. The answering Defendants have denied that they are the joint owners of the Suit Property and that they entered into any agreement to sell with the Plaintiff for the Suit Property. However, it is admitted that Defendant number 1 was a witness to the receipt dated 27.12.2000 which was executed and signed by the predecessor in interest of Defendant no. 3 to 5. Any involvement of Defendant no. 2 is completely denied. It is further averred that apart from the receipt dated 27.12.2000, no other transaction of any type was ever done in the presence of the Defendant number 1.
All the contents of the plaint have been denied by the defendants.
14. It is specifically denied that a payment of Rs. 10 Lacs, on 27.12.2000 was made in the hands of Defendant number 1 and in the presence of Late Sh. P. C. Bidhuri or that the possession of the Suit Property was given to the Plaintiff on that date or any other day by the Defendants.
15. It is further denied that the Plaintiff approached the answering Defendants multiple times between the year 2001 and 2008 and requested them to take the remaining consideration and execute the sale deed in favour of the Plaintiff or that the Defendants kept on delaying the same on the ground of regularization of the colony.
16. Regarding the incident on 31.03.2011, it is denied and it is submitted that the allegations regarding construction of the suit property are contradictory to Plaintiff's own pleadings, as on one hand, she is alleging that the possession of the plot remained with her and on the other hand, she is alleging that the Defendants are raising construction on the suit property. In fact, it is denied that Defendants ever raised any construction on the suit property. The counteroffer of the Defendants of either returning Rs. 20 lakhs or the Plaintiff paying a further Rs. 20 lakhs to execute sale is also denied.
Stand of Defendants No. 3 to 517. Joint written statement has been filed by defendant number 3 to 5 and they have taken the following Preliminary Objections:
17.1. That the Suit is barred by limitation, as the Plaintiff has sought specific performance of a contract of 2000 by filing the suit in May 2011.
17.2. That the suit land as described, forms part of agricultural land governed by the provisions of Delhi Land Reforms Act, 1954.
17.3. That the Suit Property has not been described as required under Order 7 Rule 3 of C.P.C. and thus, the suit is non maintainable.
17.4. That the suit has not been properly valued for the purposes of court fees and jurisdiction.
17.5. That the plaintiff has not approached the Court with clean hands and has concealed material facts from the court. The answering Defendants have submitted that after making initial payment, the Plaintiff was to make balance payment within 90 days but despite repeated request of the Defendants, she did not come forward to make balance payment and to get the documents executed in her favour. As such it is submitted that as the plaintiff failed to disclose her willingness to execute the sale deed within the agreed upon time of 90 days, she has not come with clean hands before the court and is not entitled to seek equitable relief of injunction.
18. The answering defendants have denied the contents of the plaint and stated that this is a false and frivolous suit filed by the Plaintiff with some ulterior motive. The ownership of the Suit Property is denied by the answering Defendants and it is denied that their father ever entered into an agreement for sale of the suit property as stated in the plaint. Defendant number 3 has specifically denied that he was present in any meeting between the Plaintiff and his father or that any meeting took place at their house where the Plaintiff paid ₹ 10 Lacs to Defendant number one in his presence. It is further denied that he had ever witnessed any such deal between his father and the Plaintiff.
19. The averment of the Plaintiff regarding her meeting with defendant number 3 to 5 to honour the commitment made by their father and the assurance to complete any such deal is also denied. It is stated that the answering Defendants have no knowledge about any such deal entered between the Plaintiff and their father and that they did not inherit the suit property on the death of their father.
20. The averments regarding the presence of the defendants on the suit property on 31.03.2011 and the conversation thereupon is denied. It is stated that the answering Defendants made queries and found out that the land is owned by one Mohammad Saeed son of Abdul Razzak who is in the possession of the suit property and any construction being carried out is being done by such owner.
Rest of the averments regarding any further offer by the Defendants to the Plaintiff are also denied.
Admission denial of documents:
21. Defendant number 1 has filed and affidavit of admission denial on 15.09.2014 and in that affidavit he has admitted his signatures on receipt dated 27.12.2000 as witness, which was executed by the predecessor in interest of the defendant numbers 3 to 5.
22. Defendant number 3 had also filed his affidavit of admission denial and he has specifically denied the signature of his father on the documents being receipt dated 06.10.2020 and 27.12.2000.
Application under Order 1 Rule 10:
23. The Plaintiff filed an application under Order 1 Rule 10 read with Order 39 Rule 1 and 2 of the Code of Civil Procedure, seeking impleadment of one Shri Mohd Saeed who was stated to be the owner of the suit property in the written statement of Defendant Nos. 3 to 5. The proposed Defendant filed reply to the said application and submitted that the present application was not maintainable as in the instant case for specific performance there is no privity of contract between the Plaintiff and the answering non-
applicant. It was further submitted that the non-applicant is the rightful owner of the suit property which he purchased from one Smt. Kartari Devi, who was the recorded owner of the suit property and now he is in lawful possession of the suit property and the construction being raised belongs to him. Vide a detailed order dated 25.04.2014, the said application was allowed and Mohd. Saeed was impleaded as defendant No. 6 in the suit. Questions on the title of the existing Defendants was raised and it was stated that it needs to be adjudicated whether the Defendants executed the agreement in their own rights or as attorneys of Smt. Kartari Devi. The defendant number 6 did not appear after that date nor filed his written statement therefore, vide order dated 22 January 2015, the defence defendant No. 6 was struck off.
Issues:
24. Vide order dated 23.03.2015, the following issues were framed:
24.1. Whether the Plaintiff is entitled to a decree of specific performance in terms of the agreement of sale dated 06.10.2000 and 27.12.2000 for property bearing Plot Number G-89 (Khasara No. 442), Kalindi Kunj, Shaheen Bagh, 13A road New Delhi, if so, its effect? OPP.
24.2.Whether the suit of the plaintiff has not been properly valued for the purposes of court fee and jurisdiction? OPD-1&2.
24.3. Whether the suit of the plaintiff is barred by limitation, if so, its effect? OPD-
3&5.
24.4.Whether the suit of the plaintiff is hit by the provisions of section 185 of the Delhi Land Reforms Act, 1954, if so, its effect?
OPD-3&5.
24.5. Relief.
Plaintiff's Evidence:
25. The plaintiff examined herself as PW1 and deposed as per her plaint. The plaintiff proved the following documents:
25.1. Copy of affidavit in evidence as Exhibit PW1/A. 25.2. Copy of Complaint filed before the Learned Magistrate u/s 200 Cr. P. C. as Exhibit PW1/D. 25.3. Receipt dated 06.10.2000 as exhibit PW1/F. 25.4. Receipt dated 27.12.2000 has exhibit PW1/E.
26. The Plaintiff was cross-examined by the counsel for defendant number 1 & 2 on 12.04.2018, 21.05.2018 and 07.06.2018. She stated in her cross-examination that she met Defendant number one for the 1st time in his office of property dealing with the name and style of Master Associates. She stated that she was shown the documents of the Suit Property however, she could not read the contents of the same. She was verbally told that the property was in the name of Sh. P. C. Bidhuri but the same was in the name of defendant number 1 and 2 along with late Sh. P. C. Bidhuri, in whose name the G.P.A. of the Suit Property was and he was the 3rd partner of Master Associate. She has further stated that when she saw the suit property for the 1st time, it was a vacant plot and there was no permanent construction around the said plot. She has stated that she handed over Rs. 10 Lacs on 6.10.2000 to Defendant number one in the presence of Defendant number 2 and Sh. P. C. Bidhuri at the residence of Sh. P. C. Bidhuri against which receipt dated 6.10.2000 was executed which is exhibit PW1/F. It is further stated that the understanding between the parties was that she will make the balance payment only on the receipt of original papers of the suit property. She was told that the colony was soon going to be regularised and after that the papers will be handed over. She stated that the 2nd payment of ₹ 10 Lacs was made on 27.12.2000 against which receipt of even date was executed, which is exhibit PW1/E. She stated that no agreement was executed between her and Defendant number 1 and 2 and Sh.
P. C. Bidhuri as she was told that the receipt was enough. She has further stated that as per her knowledge the receipt was known as the agreement. She stated that she had prior business relationships with Defendant number 1 and 2 and met Sh. P. C. Bidhuri for the 1st time for the present deal. She stated that she was told about the suit property by Defendant number 1 and was told verbally that the Defendant number 1 and 2 were joint owners in the suit property with Sh. P. C. Bidhuri. She has stated that Defendants had marked the boundary of the Suit Property at the time of delivery of possession of the Suit Property. She admitted that she does not have any proof of possession as the suit property was handed over to her symbolically and verbally.
27. Regarding the ownership of the suit property in the name of the Mohd. Saeed, she has stated that she does not have any personal knowledge about the same but the Defendants had mentioned the name of the owner and that's why she had moved an application to implead the said Mohd. Saeed. In reply to a specific question, she stated that she could not produce any document to show that Defendant number 1, 2 and Sh. P. C. Bidhuri were the joint owners of the Suit Property. She stated that she cannot produce the said documents as they were shown to her but were not given to her. She has further stated that she had not clarified about the ownership of the Suit Property from the Defendants at the time of delivery of possession of the Suit Property and the boundary of the suit property was marked on the spot and possession was handed over to her on 27.12.2000, symbolically and verbally and not in writing. She has admitted to not sending any legal notice to the Defendants asking them to perform their part of the agreement as she had gone to meet the Defendants personally and also asked them telephonically, to execute the same, on multiple occasions. She stated that till 30 March 2011 she had not taken any action against the defendants as she knew them personally and trusted Defendant number 1 and 2 as they had got her deals earlier also. She states that only after she came to know about the construction going on and on the suit property she started taking action. She has denied that the receipt dated 27.12.2000 is forged. To justify the fact that property number of the suit property is not mentioned in exhibit PW1/E, she has stated that the same is mentioned in exhibit PW1/F. It is further stated that at the time of execution of the receipts only defendant number 1, 2 and predecessor in interest of defendants Nos. 3 to 5 were present.
28. She was separately cross-examined by the counsel for Defendant no. 3 to 5. She stated that the payment was handed over to Defendant number one in the presence of Defendant No. 2 and predecessor in interest of Defendant numbers 3 to
5. She further stated that receipts were handwritten in her presence by Defendant number 1. She stated that she was not sure about any documents showing that the suit property was in the process of getting regularized. She had admitted the fact that 90 days time was fixed for paying the balance consideration amount and execution of sale deed in her favour. She has further stated that she did not make the full payment because the property papers were not given to her. She stated that she has no documentary proof that Sh. P. C. Bidhuri alongwith defendant No. 1 and 2 were the owners of the suit property or that they have made any construction on the Suit Property. She stated that she approached the Defendant numbers 3 to 5 for transfer of the suit property in the year 2011 and that she came to know about the death of Sh. P. C. Bidhuri in 2008-2009. She has further stated that she knew the defendant numbers 3 to 5 since 31.03.2014. she has denied that she has any proof that she approached the Defendants multiple times between 2001-2011.
29. The Plaintiff did not examine any other witness and closed the evidence.
Defendant's Evidence:
30. Defendant No. 5 examined himself on behalf of Defendant numbers 3 to 5 as DW1. Evidence by way of affidavit was filed by him and he has deposed as per his pleadings. He has denied that Sh. P. C. Bidhuri ever signed or executed any agreement with the Plaintiff or received any money from the Plaintiff. He has also denied that his father was an associate of Defendant numbers 1 and 2.
31. He was cross-examined by the learned counsel for the Plaintiff. In his cross examination he has denied the suggestion that his father was an associate in Master Associates with Defendant numbers 1 and 2. He stated that his father was an advocate by profession and did not do property dealing work. He has denied that his father and Defendant number one sold the Suit Property to the Plaintiff or that they took Rs. 10 Lacs as advance on 06.10.2000. On being shown the receipt dated 06.10.2000, he stated that the signatures on the same do not seem to be of his father's. He stated that he has no knowledge whether a sum of ₹ 10 Lacs was received by his father on 27.12.2000. On being shown the receipt dated 27.12.2000, he stated that he does not have any knowledge about the same. He has denied that Defendant numbers 1 and 2 were having the documents pertaining to the title of the Suit Property and they were shown to the Plaintiff. He has denied that physical possession of the suit property was given to the Plaintiff by demarcation of boundary on 27.12.2000. He stated that he was around 15 to 16 years old when the alleged receipts were executed and he was at boarding school at that point of time and he has no personal knowledge of the facts pertaining to the execution of any document or receiving of any money by his father. He has denied any personal knowledge about any dealings between his father and the Plaintiff. He has denied any knowledge about Master Associates or whether his father was running Master Associates. He has stated that he has not seen any document relating to the Suit Property. He has stated that at this stage he does not remember the name of the owner of the Suit Property, however, he has mentioned the same in his evidence on the basis of information received by the police. He has stated that he has no personal knowledge or any information received from any other source regarding the title or possession of the property. He has denied any suggestion that his father had received Rs. 20,00,000/- from the Plaintiff or that his father had executed the receipts exhibit PW1/E and PW1/ F.
32. Defendant number one was examined as DW2. He has deposed contrary to his written statement on the aspect of his signature on Ex. PW1/E and has denied that he had signed Ex. PW1/E as a witness. On the other aspects, he has deposed as per his written statement.
33. In his cross examination he has stated that he did not remember since how long he knows the Plaintiff or whether he knew the Plaintiff before 2000. He has denied that the Plaintiff had purchased other properties through him or that he has shown the Suit Property to the plaintiff along with Defended number two and Sh. P. C. Bidhuri. He has denied that the receipts were made on the letter heads of Master Associates or that he had signed the receipt dated 27.12.2000. He states that he does not know English and his written statement was filed by his previous advocate. He has admitted his signature and the signature of defendant number two on their written statement. He stated that he had explained the facts to his previous advocate and after that his written statement was prepared which he signed but the contents of the same were not explained to him. He stated that he had informed his previous advocate that he has no concerns with the Suit Property and he has not signed any document and he was being falsely implicated in the present suit. He has stated that he has not filed any complaint against the previous advocate. He has stated that he changed his earlier advocate when he came to know that he had filed a wrong written statement, however, he did not remember whether any application for amendment of the written statement has been filed or not. He denied knowledge as to the contents of his written statement specifically para numbers 5 and 7 of the preliminary objections. He has denied that the he, Defendant number two and predecessor in interest of Defendant numbers 3 to 5 entered into any agreement with the Plaintiff or received the amount as claimed by the Plaintiff. He has further stated that the previous advocate has wrongly mentioned in para number two of reply on merits of his written statement that he was a witness to the receipt dated 27.12.2000 executed and signed by the predecessor in interest of the Defendant numbers 3 to
5. He further stated that his present advocate has told him that his previous advocate has wrongly mentioned the above fact in his written statement, however, he could not remember when this fact was told to him. He has denied any knowledge whether any application for amendment has been moved. He has denied that the Suit Property was sold to the Plaintiff for an amount of Rs. 26,00,500/- or that that the Plaintiff had paid an amount of Rs. 20 lakhs or that he was a witness to receipt dated 27.12.2000. He has denied that the two receipts have been written by him in his own handwriting. He has further denied that he or the other Defendants started raising construction over the plot of land in the year 2011. He stated that he is doing property consultancy since the year 1996 and the Plaintiff had occasionally visited his office for property consultancy, however, he has never sold or purchased properties for the Plaintiff. He has denied all suggestions made by the learner counsel of the Plaintiff. He has denied any knowledge that the majority of transactions in the area of the suit property are carried out by way of General Power of Attorney, Will, Agreement to Sell, Affidavit Possession Letter, Receipts etc. He has admitted that an First Information Report bearing number 401/2011 has been registered at PS Jamia Nagar and that charges have been framed against him and the Defendants in the said First Information Report. He has stated that he does not know under which revenue estate the suit property was situated.
34. The Defendants summoned the assistant ahlmad of the court of Sri Rajat Kohli, learned MM8, South East District, to place on record the trial court record in CR number 38/2018 titled as Parvesh Bidhuri vs State. By the evidence of DW3 forensic report regarding the two receipts was filed as exhibit DW3/1. As per the forensic report, the two receipts were examined for the similarity of signature of the predecessor in interest of Defendant number 3 to 5, signature of Defendant number one and his handwriting. The receipts were compared with the admitted signatures of predecessor in interest of Defendants number 3 to 5, admitted signature of defendant number one and admitted handwriting of Defendant number one respectively. As per the report, the expert has opined that the signatures on the two receipts purported to be of the predecessor in interest of the Defendant number 3 to 5 do match with his admitted signatures. It is further revealed by the said report that the handwriting of the receipts and the admitted handwriting of the Defendant number one are similar and in the opinion of the expert both were written by the same person. However, the expert has opined that the signature of Defendant number one on the receipt dated 27th December 2000 do not match the admitted signatures of defendant number one.
35. Thereafter the Defendants closed their evidence and the matter was listed for final arguments.
Final Arguments:
36. Ld. Counsel for Plaintiff has submitted that as per the case, agreement was entered between the parties which are Ex.PW1/E & PW1/F for which a total sum of Rs.20 lacs has been paid to Defendant numbers 1, 2 and Predecessor in interest of Defendant number 3 to 5. He further submits that these receipts constitute Agreement to Sell by which Suit Property was agreed to be sold to Plaintiff. He further submits that in his written statement, Defendant number 1 had admitted his signatures on Ex. PW1/E as a witness. Further, it is submitted that the evidence which was led by Defendant number 1 is completely beyond pleadings and in fact contrary to the same and therefore cannot be looked into. Further, he submits that Defendant numbers 3 to 5 have admitted to the fact of existence of an agreement, as per para C of the preliminary objections. He further submits that Defendant numbers 3 to 5 have also led evidence which is completely contrary to their pleadings, therefore, should not be taken into consideration. He submits that the Plaintiff was always ready and willing to perform her part of the agreement, but the defendants neither executed the same, nor denied the Plaintiff's rights.
37. He further submits that the suit is very well within limitation as provided under Article 54 of the Limitation Act. It is submitted that the first refusal to execute the sale lead was received only on 08.04.2011 and the suit was filed on 25.05. 2011 which is well within limitation.
38. Arguments were advanced by Learned Counsel for the Defendant number one and two who has submitted that the suit is barred by a limitation. He stated that if the receipts are taken at face value, then the balance payment was to be made within 90 days of 06.10.2000 and the plaintiff has neither pleaded nor proved that she made any attempt to make the balance payment within the 90 days. He submitted that even if the plea of the Plaintiff is taken on face value that time was extended by mutual consent, it cannot be assumed that time was extended for such a long time.
39. He submits that the Defendants were never the owner of the Suit Property and as such the suit for specific performance against the non-owners is completely barred. It is submitted by the Learned Counsel that the burden of proof of proving the fact that a legal agreement was entered between the Plaintiff on one side and Defendant number 1, 2 and predecessor in interest of Defendant numbers 3 to 5 which has not been discharged. He further submitted that suit is bad in law as the receipt are unregistered and are hit by the provisions of Section 33 of the Indian Stamps Act, 1899 and Section 17A of the Registration Act, 1908. He further submits that the receipts cannot be treated as an agreement as there is no valid acceptance by way of signature or otherwise of the Plaintiff and as such no contract was entered into between the parties which can be specifically enforced. It is further submitted that complete address/description of the Suit Property is not mentioned in any of the receipts and as such special performance cannot be granted as even the identity of the property is not clear from the said receipts. He further submits that no proper readiness and willingness has been pleaded or proved as per the provisions of Section 16 of the Specific Relief Act, 1963.
40. Defendant numbers 3 to 5 adopted the arguments of Defendant numbers 1 and 2.
Analysis of evidence and reasoning:
41. This is a suit for specific performance by a purchaser. In the case of Kamal Kumar v Premlata Joshi, (2019) 3 SCC 704, the Hon'ble Supreme Court of India has held:
"7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:
7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract;
7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds."
42. Therefore, this Court will examine the case of the Plaintiff against the said five material questions in conjunction with the Issues framed in the case.
43. Issue No. 1: Whether the Plaintiff is entitled to a decree of specific performance in terms of the agreement of sale dated 6th October 2000 and 27th December 2000 for property bearing Plot Number G-89 (Khasara No. 442), Kalindi Kunj, Shaheen Bagh, 13A road New Delhi, if so, its effect? OPP.
44. To decide this issue, the validity of the agreement of the parties, readiness and willingness of the Plaintiff to perform her part of the agreement and the balance of convenience for grant of decree of specific performance needs to be looked into.
45.Valid and Concluded Contract:
45.1. It is the case of the Plaintiff that the receipts dated 06.10.2000, Ex. PW1/F and 27.12.2000, Ex. PW1/E are the agreement for sale of the Suit Property and the Plaintiff has sought specific performance of the said agreement. For ease of access, the two receipts are reproduced below:
"Dated 06.10.2000, received a sum of Rs.10,00,000/-, against a plot Khasra No. 442
measuring 250 square yards at Abdul Fazal (Shaheen Bagh, Jasola) Enclave, Service Road. The total settlement is of Rs. 26,15,5000/- (Rupees twenty six lakhs fifteen thousand five hundred only) balance payment will be paid on or before 90 days".
"Dated 27.02.2000, received a sum of Rs. 10,00,000/-, against property no. plot Main Road Shaheen Bagh Abdul Fazal Road, Kalindi Kunj Road from Smt. Usha singh w/o Sh. G. Singh r/o G-131, Sarita Vihar, New Delhi- 110044."
45.2. A bare reading of the two receipts will show that the said receipts cannot be taken as an agreement to sell as the same do not enlist the complete terms required to formulate an Agreement to Sell. The two receipts only acknowledge the receipt of the amounts mentioned therein by the executor. Further, Ex. PW1/F, mentions that the amount is received against the plot and the balance payment will be made within 90 days. The said two documents do incorporate essential terms to constitute an agreement to sell. As such, the two receipts cannot be taken as agreement to sell. In the failure of the two receipts constituting an agreement to sell, the Plaintiff's case rests upon the agreement to sell being an oral one, which is evidenced by the two said receipts. The Hon'ble Supreme Court in the case of Brij Mohan v Sugra Begum (1990) 4 SCC 147, while dealing with an oral agreement to sell has held:
"We have given our careful consideration to the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement."
45.3. Against this backdrop, the claim of the Plaintiff has to be examined.
45.4. Plaintiff has heavily relied upon the admissions of the Defendant number 1 as to his signature on Ex. PW1/E and of the Defendant numbers 3 to 5 in para C of the preliminary objections of their written statement.
45.5. As far as Defendant number 1 is concerned, he has admitted to his signing of Ex. PW1/F as a witness in his written statement as well as in his affidavit of admission denial of documents. However, in his evidence, the Defendant number 1 has done a complete volte face and has stated that he did not sign the receipt and his previous advocate has wrongly stated the fact in his pleadings. It is a settled law that a party cannot be allowed to lead evidence beyond his pleadings let alone completely contrary to the same. This excuse of Defendant number 1 cannot be accepted as he has not taken any steps to rectify the alleged wrong statement in his written statement and cannot be allowed to be lead evidence contrary to the same. In view of the same, the evidence of the Defendant number 1 that he did not sign the receipt, Ex. PW1/F, cannot be accepted. As such, his admission to the signature on ex. PW1/F is taken as an admission to the fact of his signing of the same.
45.6. However, as far as Defendant numbers 3 to 5 are concerned, the position is a little different. As per the Plaintiff, the Defendant numbers 3 to 5 have admitted to the agreement to sell in para C of their written statement. The same reads as follows:
"C. That the Plaintiff has not approached the Hon'ble Court with clean hands and has concealed material facts from the court. The Plaintiff after meeting initial payment was to meet balance payment within 90 days thereof. But despite repeated request she did not come forward to make balance payment and to get the documents executed in her favour. The Plaintiffs did not show any interest to acquire land and to compete her part of obligation in terms of the contract. The Plaintiffs thus failed to disclose all such facts in her plaint not entitled to seek an equitable relief of injunction as prayed."
45.7. However, in their written statement in reply on merits, at paragraphs 2 and 5, the Defendant numbers 3 to 5 have specifically denied the allegations of the Plaintiff that their father ever entered into any agreement to sell with the Plaintiff or that he received the amount as claimed by the Plaintiff. The defendants have also denied all the factual averments of the plaint. Thus, reading the written statement as a whole and the denials of the defendants to all the allegations of the plaint and also because of the fact that the Defendants have led evidence consistent with the overall denial of the case of the Plaintiff, para C above of the written statement cannot be read as an admission. Although the Defendant numbers 3 to 5 have denied the material allegations of the plaint, in their evidence, DW1 has admitted the fact that he has no personal knowledge about any transactions between his father and the Plaintiff as he was 15 to 16 years old at the time of the alleged transaction and was studying in boarding school. In absence of any personal knowledge of DW1, the pleadings of denial of the receipts in the pleadings would have no bearings on the case.
45.8. Thus, the assertion of the Plaintiff coupled with the admission of the Defendant number 1 as to his signature on Ex. PW1/F and no contrary evidence being led by the Defendants, the said receipts are proved by the Plaintiff. This view is also supported by expert opinion DW3/1, according to which the signatures of the father of Defendant numbers 3 to 5 match with his admitted signatures and the handwriting of Defendant number match with his admitted handwriting.
45.9. Now the important question is whether the Plaintiff has been able to prove that a valid and concluded contract was entered into between the parties. The test which the alleged agreement has to pass is two fold, with regard to its validity and also the fact that it is concluded.
45.10. Section 54 of the Transfer of Property Act, 1882 defines a Contract for Sale as "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties." Whereas, Sale is defined as "Sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised" Thus, a contract for sale is essentially a promise to transfer the ownership of the immovable property on payment of consideration. Further, as per section 7 of the Transfer of Property Act, 1882, "Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is entitled to transfer such property". Thus, on a conjoint reading of the said provisions, it is clear that a sale can be made only by a person who has ownership of the property or has been authorized by the person entitled to the said property to dispose of the same. This is the incorporation of the Latin maxim "nemo dat quod non habet" into the Indian Law, which means that no one can give what he does not have.
45.11. As the onus to prove a valid contract is on the plaintiff, in case the defendants deny their title of the Suit Property, the additional onus is placed on the Plaintiff to prove that the defendants, in fact, had the title of the suit property or were authorized by the owner of the suit property to dispose of the same. In the present case, the Defendants have denied that they ever had the title of the suit property. In fact it came to the notice of the Plaintiff during the proceedings that the title of the suit property was not with the Defendants but was with one Smt. Kartari Devi. However, the Plaintiff, apart from her statement, has led no evidence to show that the Defendants had the title of the Suit Property or that they were authorised to sell the Suit Property. As such, in the absence of the any evidence of the title of the Suit Property, this Court is of the opinion that the Plaintiff has not been able to show that there was a valid agreement between the parties.
46. Continuous readiness and willingness:
46.1. As per section 16(c) of the Specific Relief Act, 1963, specific performance of a contract cannot be granted to a person who fails to pled and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him. In the present case the plaintiff has categorically mentioned in her plant as well as in her evidence that she was always ready and willing to perform her part of the agreement and she had continuously approached the defendants to execute the agreement but the defendants on one pretext or the other kept on delaying the execution of the sale deed. However, the Plaintiff has not led any evidence to substantiate her statement as to her readiness and willingness to perform her part of the agreement.
46.2. It is noteworthy to mention over here that the agreement was entered in 2000 and the plaintiff has claimed that she was continuously in touch with the defendants for the execution of the sale deed. However, till 2011, when the suit was filed, not a single letter, email, legal notice etc. was sent by the Plaintiff to the defendants to execute the sale deed. She is not able to show by any documentary evidence to substantiate her position that she was ready and willing to perform her part and that the defendants were delaying the matter. This suit has been filed after almost 11 years of the purported agreement to sell and nothing has come on record except for the statement of the Plaintiff that she made any effort to get the sale deed executed and complete the contract. In view of the same it is very difficult to believe that the Plaintiff was actually ready and willing throughout the 11 years to perform her part of the agreement. Thus, this Court is of the view that the Plaintiff has not been able to show that she was always ready and willing to perform her part of the agreement to sell.
47. The Plaintiff has neither pleaded nor proved that she has performed her part of the contract and, and as such it need not be seen whether such performance was in conformity with the terms of the contract or not.
48. Thus, based upon the above discussion and based upon the fact that the Plaintiff has neither been able to prove a valid contract between the parties nor her continuous readiness and willingness, there is no occasion to exercise discretion to grant the relief of Specific Performance to the Plaintiff. As a result, the issue is decided against the Plaintiff.
Issue No. 2: Whether the suit of the plaintiff has not been properly valued for the purposes of court fee and jurisdiction? OPD-1&2.
Issue No. 4: Whether the suit of the plaintiff is hit by the provisions of section 185 of the Delhi Land Reforms Act, 1954, if so, its effect? OPD-3&5.
49. Onus of the two issues was on the Defendants. The defendants have not led any evidence in support of these issues nor raised any legal arguments on the same. As a result, these issues are denied against the Defendants and it is held that the suit is properly valued and is not hit by the provisions of the Delhi Land Reforms Act, 1954.
Issue No. 3: Whether the suit of the plaintiff is barred by limitation, if so, its effect? OPD-3&5.
50. Next important point to be discussed is whether the suit is within limitation or is it barred by limitation. Leonard Counsel for the Plaintiff has argued that the plaintiff did not receive any denial of performance of the contract till 2011 and she got the first denial only 08.04.2011 and thereafter he has immediately come to the court and as such there is no delay in filing the present suit. The plaintiff has submitted that his case is covered by article 54 of the Schedule of the Limitation Act, which provides limitation for specific performance of a contract as three years from the time when the date was fixed for the performance of the contract or if no such date is fixed when the plaintiff has noticed that performance is refused. He is submitted that no time was fixed for the performance of the contract as the defendants have themselves always told the plaintiff that the contract would be performed once the colony gets regularized and as such, they have been delaying the date fixed for the performance of the contract and no cause of action arose till the time she received a notice of refusal of performance.
51.However, it is clearly mentioned in the receipt dated 06.10.2000 that the balance payment will be paid on or before 90 days. Plaintiff has argued that this time was extended on 27.12.2000 when she paid further amount of rupees 10 lakhs. Thereafter the time kept on getting extended by the Defendants themselves and that's why there was no occasion to file the suit any real earlier.
52. As this case is based upon the said receipts, as well as the oral agreement between the parties, evidence of sterling quality was required to prove or disprove any facts being alleged by the plaintiff. Although she has stated that the time was getting extended by the Defendants on the plea of regularization of the colony, she has not been able to substantiate her allegations beyond her own statement. It is pertinent to mention that she has not examined any other witness to prove her case or to place on record any document to prove any of her allegations except for the two receipts. As such the testimony of the plaintiff is not of the sterling quality required in an equitable relief of specific performance of a contract. It is clear that the Plaintiff has not been able to prove that the time was extended by the defendants. Fact remains that, in case the Suit Property was not being getting regularized and the Defendants were delaying the execution on this pretext after alleged agreement on 06.10.2000, the Plaintiff should not have waited for 11 years and should have taken remedial steps within a reasonable period and definitely within the period of limitation. Thus Court is of the opinion that the present suit, being filed after 11 years of the alleged agreement to sell, is barred by limitation. Thus, this issue is decided against the Plaintiff.
Issue No. 5: Relief.
53.In view of the findings of Issue number 1, the plaintiff is not entitled to the relief of specific performance.
54.In the recent judgment of Desh Raj & Ors. v Rohtash Singh (2023) 3 SCC 714, the Hon'ble Supreme Court has held that :
"33. Firstly, we may refer to Section 22 of the Specific Relief Act of 1963 (hereinafter, 'SRA Act') which provides that any person suing for the specific performance of the contract for the transfer of property may ask for- (a) possession or partition and separate possession of the property in addition of such performance OR
(b) such person may seek any other relief to which he is entitled to "including the refund of any earnest money or deposit paid or made by him" in case his claim for specific performance is refused. However, sub-Section (2) thereof puts a caveat that the above mentioned reliefs shall not be granted by the court unless "it has been specifically claimed".
The proviso to sub Section (2) further says that even if such relief was not specifically claimed in the plaint, it is the discretion of the Court to permit the plaintiff to amend the plaint "at any stage of the proceedings" and allow him to include the claim for refund of the earnest money or deposit paid.
34.The relevant part of the provision of SRA Act reads as follows:
"22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-
(a) possession, or partition and separate possession, of the property in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub section (1) shall be granted by the Court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief." (Emphasis Applied)
35. On a plain reading of the above reproduced provision, we have no reason to doubt that the plaintiff in his suit for specific performance of a contact is not only entitled to seek specific performance of the contract for the transfer of immovable property but he can also seek alternative relief(s) including the refund of any earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money.
36. Applying these principles to the facts of the case in hand, we find that the Respondent has neither prayed for the relief of refund of earnest money in the original plaint nor he sought any amendment at a subsequent stage.
In the absence of such a prayer, it is difficult to accept that the courts would suo-moto grant the refund of earnest money irrespective of the fact as to whether Section 22(2) of SRA Act is to be construed directory or mandatory in nature."
54. In the present case, it is found that neither the Plaintiff has prayed for the refund of the amount already paid in his plaint nor sought any amendment for the same, the Plaintiff cannot be granted any relief of refund of the advance paid.
55. In view of the same, the present suit is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
56. File be consigned to record room after due compliance.
Announced in the open
Court on 18.11.2023 (RAHUL BHATIA)
Additional District Judge 01(SE),
Saket Courts, New Delhi.